Of Fables and Federalism: A Re-Examination of the Historical Rationale for Federal Environmental Regulation

This paper responds to recent scholarship questioning the need for environmental statutes that place primary responsibility for regulation in the hands of the federal government. These claims are based, in part, upon assertions that state and local governments had made great progress on a number of pollution fronts before the major federal environmental statutes were passed in the 1970s. Having demonstrated in earlier work that these claims lack credible empirical and historical support with respect to water pollution, I turn here to air pollution, the area where the critics contend the most extensive data exists supporting their assertions. I seek to demonstrate that the data upon which the critics have relied is seriously flawed and cannot be relied upon to support the contention that sulfur dioxide and particulate matter pollution were declining in the years before substantial federal regulatory involvement. In fact, additional empirical data reveals that sulfur dioxide pollution was growing much worse during these years. While this additional evidence shows that particulate matter pollution was improving, the article reveals that most of this improvement can be attributed to a variety of technical and economic developments that were non-regulatory in origin. This conclusion is buttressed by an exploration of state and local regulatory efforts during this time period that confirms the view that these efforts were fragmentary and, on the whole, ineffective. The lack of broad progress prior to 1970 is then contrasted with the remarkable progress that has been achieved through the Clean Air Act of 1970. The empirical and historical record thus casts serious doubt upon the claim that federal authority could be reduced today without producing adverse environmental impact.